Clo16 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2022] FedCFamC2G 178
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
CLO16 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 178
File number(s): SYG 2373 of 2016 Judgment of: JUDGE MANOUSARIDIS Date of judgment: 18 March 2022 Catchwords: MIGRATION – application for remedies under s 476 of the Migration Act 1958 (Cth) (Act) in relation to a decision made by the Administrative Appeals Tribunal (Tribunal) affirming decision not to grant Protection visa – whether Tribunal’s fact finding was capricious, arbitrary, or unreasoned such as to give rise to reasonable apprehension of bias – whether had the Tribunal disclosed to the applicant a certificate purportedly issued under s 438 of the Act there was a possibility that the Tribunal could have decided differently – whether applicant made claims the Tribunal did not consider – application dismissed. Legislation: Migration Act 1958 (Cth) ss 36(2)(a), 36(2)(aa), 36(2A), 417(1), 430, 437, 438, 476 Cases cited: ASIC v Rich [2005] NSWSC 417
CNY17 v Minister for Immigration and Border Protection [2019] HCA 50
Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26
Minister for Immigration and Border Protection v SZMTA; CQZ15 v Minister for Immigration and Border Protection; BEG15 v Minister for Immigration and Border Protection [2019] HCA 3
MZAPC v Minister for Immigration and Border Protection [2021] HCA 17
NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2004] FCAFC 263
NAVK v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1695
SCAA v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 668
SCAL v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 548
SGBB v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 199 ALR 364
Division: General Number of paragraphs: 48 Date of hearing: 3 August 2021 Place: Sydney The Applicant: Appeared in person, assisted by an interpreter, by telephone Solicitor for the First Respondent: Ms D Stone of Sparke Helmore Lawyers, by telephone ORDERS
SYG 2373 of 2016 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: CLO16
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE MANOUSARIDIS
DATE OF ORDER:
18 MARCH 2022
THE COURT ORDERS THAT:
1.The application is dismissed.
2.The applicant pay the first respondent’s costs set in the amount of $7,467.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
INTRODUCTION
The applicant applies for remedies under s 476 of the Migration Act 1958 (Cth) (Act) in relation to a decision made by the second respondent (Tribunal) affirming a decision of a delegate of the first respondent (Minister) not to grant the applicant a Protection (class XA) visa (Protection visa).
CLAIMS FOR PROTECTION
The applicant stated his claims on a number of occasions; but it would be convenient to begin with the claims the applicant made in the statutory declaration that formed part of his application for a Protection visa (2012 Statement).[1] The applicant there claimed as follows:
(a)The applicant is a citizen of Sri Lanka, a Tamil, and a Catholic. The applicant was born in the Puttalam district.
(b)In 1993 the applicant’s mother’s cousin (Ms T) and her family suffered great losses when their house was destroyed by Sinhalese people when the Liberation Tigers of Tamil Eelam (LTTE) carried out an attack in a particular area. Following the attack the applicant and his family fled the area and sought refuge in a nearby school for a few days.
(c)In 2008 the applicant’s cousin (Ms N) and her husband (Mr S) were shot and killed by the Sri Lankan Army (SLA) close to where the applicant resided. Mr S was a labourer, and an innocent Tamil living in the area. To this day the families do not know why the SLA gunned down Ms N and Mr S.
(d)Ms T lodged a complaint with the police station. A few days later Ms T was abducted in a white van, and was held for one day at an unknown location that Ms T suspected to be a Puttalam army camp. Ms T said the SLA tortured and beat her.
(e)Sometime in 2008, after the applicant returned from Saudi Arabia, he opened a food and grocery shop in a Sinhala area in the Puttalam district. The applicant had a number of problems. Sinhala men and Sri Lankan police would purchase items from the applicant’s shop without paying the applicant. Sinhala men and Sri Lankan Police (SLP) verbally assaulted and almost beat the applicant when he asked for payment. It was not possible for the applicant to continue to work in the Sinhala area.
(f)The applicant then joined his brother to open a food shop in a Tamil area where several Tamil fishermen live; but it was also not possible to continue to run the business because highly intoxicated SLP would often come to the shop and, in most instances, not pay the applicant for the goods they consumed.
(g)The applicant was living in fear in Sri Lanka because the SLP often came to the applicant’s shop, and the applicant believed that it was only a matter of time before the police would cause him serious harm because the applicant continued to ask for payment whenever it was due.
(h)The applicant fears returning to Sri Lanka because he is a Tamil from North Western Sri Lanka, and because he left Sri Lanka illegally, and has claimed asylum in Australia.
[1] CB77-80
It appears that in a later statement, or at least in his interview before the delegate, the applicant also claimed that in 2009 the Criminal Investigation Division (CID) came to his house and interrogated the applicant about his visit to the United Kingdom (UK), and asked him if he had any links with the LTTE. Although the applicant denied any association with the LTTE, he was detained and released after a court hearing, and after being required to pay fines.[2]
[2] CB171, fifth dot point
Before the delegate in June 2013 the applicant made two additional claims.
(a)In February 2012, at around midnight, two men knocked at the applicant’s door claiming they were from the police. On opening the door two drunk men held the applicant at gunpoint, and entered his house. The men threatened to kill the applicant if he did not allow his wife to sleep with them. The applicant became fearful, and he allowed the men to sleep with his wife.[3]
(b)About two months later the same two policemen came back, and again threatened the applicant, and slept with the applicant’s wife.[4]
[3] CB171, ninth dot point
[4] CB171, tenth dot point
In 2014 the applicant made a statement “which is identified as a record of a telephone statement made by the applicant to RMA . . . using a TIS interpreter in the Tamil and English languages” (2014 Statement).[5] The applicant there claimed as follows:
(a)The applicant’s wife said she would commit suicide if the applicant were to reveal the rapes to anyone.
(b)After the second rape the applicant’s wife and children moved to the applicant’s mother’s home permanently, the applicant handed the shop to his brothers-in-law, and the applicant came to Australia to seek asylum.
(c)The applicant believes the SLP harass him because of the money he is owed, and also because of the applicant’s involvement in trying to get justice for the murder of Ms N and Mr S.
(d)The applicant’s wife informed the applicant the SLP are aware he has left Sri Lanka, and they have come looking for him at his mother-in-law’s house.
[5] CB288, [20]. I assume “RMA” is an abbreviation for “registered migration agent”, and “TIS’ is an abbreviation for “Translating and Interpreting Service”.
The applicant gave evidence and presented arguments before the Refugee Review Tribunal (RRT) on 1 December 2014;[6] and in 2016 the applicant appeared before the Tribunal after the RRT’s decision made on 17 January 2015 was quashed by order of this Court made on 27 August 2015.
[6] CB198, [3]
TRIBUNAL’S REASONS
The Tribunal did not accept that the applicant’s wife was raped by the SLP or by any other element of the Sri Lankan authorities.[7] The Tribunal relied on the following matters:
(a)In the 2014 Statement the applicant claimed that his wife and his two children moved permanently to the applicant’s mother’s house after she was raped the second time, whereas before the Tribunal the applicant said that, for six months after the applicant left Sri Lanka, the applicant’s wife and two children continued to live in the same home that adjoined the shop at which the applicant and his wife also worked.[8]
(b)The Tribunal found that the applicant’s wife’s willingness to continue living in the same home and to continue working in the same shop did not impress the Tribunal as consistent with the fear, terror, and shame she claimed to have experienced in connection with the troubling incidents described.[9]
(c)In the 2014 Statement the applicant said that the two gunmen pointed a gun to the applicant’s head, whereas before the Tribunal the applicant said that they had pointed a pistol to his chest.[10]
(d)In evidence given to the Tribunal, the applicant said he believed the SLP were targeting him, and that is the reason they raped the applicant’s wife; and he believed the SLP were targeting him because his home place was the place where the LTTE attacked an army camp in 1993, and the SLA suspected him and others from the area to be LTTE supporters. Yet the applicant said he had not been taken by the SLA, SLP, CID, or any other element of the Sri Lankan authorities for questioning about any links he may have with the LTTE, although the applicant also said that they often came into his shop, asked questions, and made accusations that he supports the LTTE, these not being matters the applicant recorded in his written evidence.[11]
(e)On the Tribunal putting to the applicant that his not having been taken for questioning about any links with LTTE, the applicant referred to his involvement in pursuing the killers of Ms N and Mr S, but, for reasons I set out later, the Tribunal did not accept the applicant’s evidence.[12]
(f)The applicant first made his claims relating to his wife when interviewed by the delegate in June 2013; and the applicant did not in his written evidence identify any difficulties with the SLP other than noting that the SLP and other officials disrupted the applicant’s shop when under the influence of alcohol, and that the applicant had been “verbally assaulted” and “almost beaten”.[13]
(g)The applicant’s apparent willingness to leave his wife and children when, on his evidence, the applicant’s wife would have been in a vulnerable state because she had been raped.[14]
[7] CB293, [38]
[8] CB291, [31]
[9] CB291, [31]
[10] CB291-292, [32]
[11] CB292, [33]
[12] CB292, [35]
[13] CB292, [36]
[14] CB292, [37]
The Tribunal accepted that in 2008 the applicant had an argument with SLP officers who came into his shop wanting a place to consume alcohol which he did not provide; in around January 2012 drunk members of the SLP came to his shop and tried to queue jump for service and went to attack the applicant but, when the applicant agreed to serve them, the confrontation abated; also in around January 2012 SLP officers came and scolded the applicant for taking too long to prepare their food, and told him that he had to respect and care for them when they came to his shop; and these incidents affected the applicant’s peace of mind.[15] The Tribunal did not accept, however, that the mistreatment the applicant experienced while running his two shops amounted to serious or significant harm; and it did not accept that the mistreatment gave the applicant any adverse profile among the Sri Lankan authorities, including any connection with the LTTE.[16]
[15] CB294, [43]
[16] CB294, [43]
The Tribunal accepted the claim the applicant made at his entry interview that when he travelled by train from Puttalam to Colombo to get his passport in 2000 the Sinhalese alerted the SLA who encircled and questioned the applicant, and that the applicant felt very embarrassed. The Tribunal, however, did not consider this gave rise to the applicant having any ongoing adverse profile such as to give rise to a real chance of significant harm in Sri Lanka in the reasonably foreseeable future.[17]
[17] CB294-295, [44]
The Tribunal accepted Ms N (the applicant’s cousin) and Mr S (the applicant’s cousin’s husband) were shot dead in 2008, but the Tribunal did not accept the applicant was perceived to have any involvement in making a complaint to the police in relation to those deaths, or in seeking any investigation into who was responsible. The Tribunal, therefore, was not satisfied the applicant had or now has an adverse profile with the Sri Lankan authorities, including the SLP, in connection with the deaths of Ms N and Mr S.[18] The Tribunal principally relied on what it found to be inconsistent evidence the applicant had given. In the 2014 Statement the applicant said he was involved in trying to find the killers with his aunt (that is, Ms T); but in the 2012 Statement, although referring to his aunt being abducted and tortured when she tried to initiate an investigation of the crime, there is no mention of the applicant’s involvement in any complaints in relation to the deaths of Ms N or Mr S.[19] The Tribunal also relied on the applicant’s evidence that after Ms N and Mr S were shot in 2008 the applicant continued to live in the house where they had been shot without any further difficulties from the Sri Lankan authorities.[20]
[18] CB296, [53]
[19] CB295-296, [49], [50]
[20] CB296, [52]
In any event, the Tribunal did not accept the applicant’s claim that his aunt (Ms T) was abducted, or that the applicant made any complaint about the disappearance of his aunt.[21] The Tribunal principally relied on what it found to be the applicant’s inconsistent evidence. In the 2012 Statement the applicant claimed that, after she was abducted and she returned, Ms T said she had been held in one location for one day; but before the Tribunal in 2016 the applicant said Ms T had been detained for 3 days and was then in hospital for 3 days.[22] The Tribunal also relied on a purported police record of a statement the applicant made to the police (which the Tribunal did not in any event accept was genuine[23]), which does not record the applicant making any complaint about his aunt (Ms T). The document records the applicant “making this complaint to police to find my auntie”, and describes what Ms T was doing and wearing; and Ms T remaining in the house after her return without experiencing any other harm.[24] The Tribunal did not accept the police statement was genuine.[25]
[21] CB297, [57]
[22] CB296, [55]
[23] CB297, [57]
[24] CB296, [56]. An English translation of the purported police statement is at CB240
[25] CB297, [57]
The Tribunal made the following additional findings:
(a)The Tribunal did not consider the applicant’s claim that he has trouble getting things done at the offices of the Sri Lankan government because “they don’t speak Tamil” to be supported by the evidence and the applicant. Therefore, the applicant does not face a real chance of serious or significant harm in the reasonably foreseeable future in connection with that claim.[26]
(b)The Tribunal did not accept the applicant’s claim that Tamils are not free to speak their own language in Sri Lanka.[27]
(c)The Tribunal was not satisfied the applicant has any actual or imputed political opinion linked to the LTTE, or opposed to the Sri Lankan government, because he is a Tamil from the North West Province.[28]
(d)The Tribunal was not satisfied that he would not be perceived to have any link with the LTTE, or opposition to the Sri Lankan government, because of his long absence from Sri Lanka,[29] or because he will be a failed asylum seeker.[30]
(e)Although the Tribunal accepted the applicant departed Sri Lanka illegally, and that on his return he will be charged, fined, and possibly held in custody for a short period of time, the Tribunal was not satisfied the applicant faces a real chance of serious harm because he departed Sri Lanka illegally,[31] or that this will give rise to a real risk of significant harm within the meaning of s 36(2A) of the Act.[32]
[26] CB298, [63]
[27] CB298-299, [65]
[28] CB299, [70]
[29] CB300, [73]
[30] CB306, [96]
[31] CB302, [80]
[32] CB303, [84]
In the light of these findings, the Tribunal was not satisfied the applicant met the criteria for the grant of a Protection visa, either under s 36(2)(a) or s 36(2)(aa) of the Act.
GROUNDS OF APPLICATION
The applicant, who appeared at the hearing before me without legal representation, but with the assistance of an interpreter, relies on the three grounds of application contained in the further amended application. The further amended application was filed at a time when the applicant was legally represented. The applicant also relies on the written submissions he filed on 23 July 2021. At the hearing before me the applicant said he did not wish to make any further submissions, but said he relied on his written submissions.
Ground 1
Ground 1 of the further amended application is as follows (errors in original):
The Tribunal make a legal error in denying the applicant a fair hearing by reason of there being a reasonable apprehension of bias.
Particulars
(a)The fact-finding by the Tribunal was performed in a manner which in major respect was caprieious, arbitrary, unreasoned, consisted of assertion, lacked rational or reasoned foundations, and/or was in relation to the preponderance of findings selective of material or conclusions going one way only, such that a fair-mined and informed person might reasonably apprehend that the decision-maker might not have brought an impartial mind to bear on the decision;
(b) The finding of fact to which the fair-minded and informed person might reasonable have regard in forming the apprehension include:
i.The manner in which the Tribunal considered the country evidence which reported a high prevalence of fraudulent documentation from Sri Lank in finding that the police statement was not genuine without any attempt to verify its genuiness; and
ii.The manner in which the Tribunal considered the country evidence that fraudulent documents can be obtained in Sri Lanka in finding that the police statement was not genuine caused the applicant to be treated less favourably than another person in a similar situation because of his race, colour, descent, national or ethnic origin or immigration status.
In his written submissions the applicant submits the Tribunal did not engage in a genuine and realistic consideration of the applicant’s claims and documents due to the Tribunal’s coming to the hearing with a closed mind.
The ground makes two claims. The first relates to the Tribunal’s findings of fact. The ground asserts the Tribunal’s findings are capricious, arbitrary, and unreasoned. The second claim is that the Tribunal’s having made findings of fact of this character might reasonably lead a fair-minded lay observer, properly informed of the procedure that Part 7 of the Act provides, to apprehend that the Tribunal might not have brought an impartial and unprejudiced mind to the resolution of the factual and legal questions that arose for its decision in the conduct of the review.[33] The only finding of fact the ground identifies as having this character is the Tribunal’s not accepting as genuine a purported police record of a statement the applicant gave to the police in relation to the abduction of the applicant’s aunt, Ms T; and the only basis on which the ground claims the Tribunal’s findings in relation to the authenticity of the police record is that the Tribunal relied on country information to the effect “there is a high prevalence of fraud in documentation from Sri Lanka”.[34]
[33] This formulation has been adapted from that given by Kiefel CJ and Gageler J in CNY17 v Minister for Immigration and Border Protection [2019] HCA 50, at [17]
[34] CB296-297, [56], [57]. An English translation of the purported police statement is at CB240
The Tribunal’s not accepting the authenticity of the police record on the basis of country information suggesting the prevalence of documentary fraud must be viewed in the light of whether there was any evidence before the Tribunal that was reasonably capable of authenticating the police record.[35] The only evidence is the document itself. There was no evidence, however, before the Tribunal about when or how the applicant obtained the original document from the relevant police station in Sri Lanka; nor is there any evidence that shows when and how the applicant arranged for the translation of the police record from Sinhalese to English. Further, there is in evidence what appear to be two purported translations of a police record of a statement the applicant purported to make to the police in relation to his missing aunt. One is at page 158 of the Court Book, and the other is at page 240 of the Court Book; and the purported interpretations contain a number of differences. For example, the name of the police officer who took the statement differs, although in both translations the police officer has the same police officer number; but in both documents the name of the police officer who copied the complaint is the same, but the police officer number differs.
[35] “Authentication is about showing that the document is what it is claimed to be” – ASIC v Rich [2005] NSWSC 417, at [118] (Austin J)
Given the absence of any evidence of authentication of the purported police record of the applicant’s statement to the police in relation to Ms T, other than the document itself, it was reasonably open to the Tribunal to rely on country information that showed a prevalence of document fraud in Sri Lanka as the reasons for not being satisfied that the purported police record was authentic.
Even if it was not reasonably open to the Authority to so rely on the country information, that by itself might not lead a fair-minded person to reasonably apprehend that the Tribunal might not bring an impartial and unprejudiced mind to the resolution of the factual and legal questions that arose for its decision in the conduct of the review. As von Doussa J said in SCAA v Minister for Immigration & Multicultural & Indigenous Affairs:[36]
In my opinion it will be a rare and exceptional case where actual bias can be demonstrated solely from the published reasons for decision. Reasons for decision reflect conclusions reached at the end of the decision making process, and if the decision is against the party complaining, the expression of adverse findings on credit and fact are an inevitable part of the expression of the reasons. The mere fact of adverse findings at the end of the matter give rise to no inference as to the state of mind of the decision maker before and whilst the matter was under consideration, nor of prejudgment of the issues that fell for decision. Even where it is possible to show that the adverse findings or some of them are contrary to the evidence or unreasonable, or that the reasoning process is hopelessly flawed, that without more is unlikely to demonstrate that the decision maker had embarked on the case with a closed mind, not open to persuasion. However, where the party alleging actual bias can point not only to an adverse judgment containing demonstrable error but also to conduct by the decision maker antithetical to that party’s interests such as a hostile attitude throughout the hearing ... or a failure to enquire into and to obtain readily available and important information relating to central matters for determination ... an inference of actual bias by prejudgment might then be more readily drawn. But even then the circumstances are likely to be rare and exceptional that the combination of factors and circumstances will clearly prove actual bias.
[36] SCAA v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 668, at [38]
Ground 1 of the further amended application, therefore, fails.
Ground 2
Ground 2 of the further amended application is as follows:
The Tribunal fell into jurisdictional error in failing in find that a purported s438 certificate was invalid and that the consequent failure to put the material purportedly covered by the certificate to the applicant for comment constituted a denial of procedural fairness.
Particulars
The certification in the purported s438 certificate did not relate to a matter permitted under s 438(1) of the Act, with the result that it was invalid. The non-disclosure of material before the Tribunal constituted a denial of procedural fairness.
The Minister accepts that a certificate was issued purportedly pursuant to s 438(1) of the Act (438 Certificate); the 438 Certificate is invalid; the Tribunal ought to have disclosed the 438 Certificate to the applicant, but it failed to do so; and, by failing to disclose the 438 Certificate to the applicant, the Tribunal denied the applicant procedural fairness. The Minister, however, submits the applicant is unable to show that there would have been a realistic possibility that the Tribunal could have made a different decision had the Tribunal disclosed to the applicant the 438 Certificate or the documents covered by the 438 Certificate.[37].
[37] Minister for Immigration and Border Protection v SZMTA; CQZ15 v Minister for Immigration and Border Protection; BEG15 v Minister for Immigration and Border Protection [2019] HCA 3, at [45]; see now MZAPC v Minister for Immigration and Border Protection [2021] HCA 17, at [2]-[4]
The documents covered by the 438 Certificate consist of the following:
(a)the applicant’s arrival interview;[38]
(b)two internal documents that record the application for review had been remitted to the Tribunal for reconsideration;[39]
(c)a pro form document titled “Disclosure Decision Checklist” recording there are no documents that fall within s 437, s 438(1)(a), or s 438(1)b) of the Act;[40]
(d)a file note dated 20 January 2015 recording that the applicant did not meet the requirements for an exercise of the Minister’s discretion under s 417(1) of the Act;[41] and
(e)a letter dated 19 January 2015 from the RRT to the Department of Immigration and Border Protection (as the Department of Immigration, Citizenship, Migrant Services and Multicultural Affairs was then known) (Department) attaching the Tribunal’s statement under s 430 of the Act.[42]
[38] CB1-21
[39] CB216-217, 219-220
[40] CB218
[41] CB223
[42] CB221-222
The documents identified in (b)-(e) are incapable of having any relevance to the claims the applicant made, and the reasons on which the Tribunal relied for affirming the delegate’s decision. The arrival interview, however, requires some attention. The Tribunal acknowledged that its assessment was “informed by a range of sources including: the Department’s file relating to the applicant which includes a record of his entry interview conducted on 23 August 2012 (Entry Interview)”;[43] the Tribunal identifies the claims the applicant made in the Entry Interview; and the Tribunal considered and dealt with each of the claims it identified. It is apparent from its reason that the Tribunal discussed with the applicant each of the claims it identified in the Entry Interview. Further, the Tribunal found that the evidence the applicant gave before the Tribunal about the difficulties he claimed he faced in running his business “were generally consistent with those identified at his Entry Interview”;[44] and the Tribunal did not rely on the Entry Interview to draw any adverse inferences against the applicant.
[43] CB285, [9]
[44] CB294, [43]
I am not only not satisfied that, if Tribunal disclosed to the applicant the 438 Certificate and the documents covered by it, there would have been a realistic possibility that the Tribunal could have made a different decision; I am satisfied that, had the Tribunal disclosed to the applicant the 438 Certificate and the documents covered by it there could have been no realistic possibility that the Tribunal could have made a different decision.
Ground 2 of the further amended application, therefore, also fails.
Ground 3
Ground 3 of the further amended application is as follows (errors in original):
The Tribunal failed to advert, assess and engage in genuine and realistic consideration of applicant's claims:
Particulars
•The Tribunal had information at the time it took the decision that the Previous Tribunal had accepted that I was interrogated by the CID in 2009 regarding a trip to England and whether I had links to the LTTE. (AAT decision 17 January 2015 at para 14).
•The faced general harassment and verbal assault from Sinhalese.
•In my entry interview, I raised a claim that since l did not pay the balance money to the human traffickers who sent me to Australia by boat, I will face trouble. (Court Book: 18)
•ln my representative his submission (Court Book 114) noted that l would face be targeted and harm due to visible scars.
•My representative in his submission (Court Book 150) submitted that Sri Lankan Tamil Diaspora in Australia will face harm.
•I presented information at the entry interview that mv cousin . . . involved in political activities. (Court Book 15)
This ground claims the applicant had made six claims which the Tribunal either did not consider, or did not properly consider.
Principles
The principles relating to identifying the claims the Tribunal is required to consider, are well known, and I need only refer to two authorities. The first is the judgment of the Full Federal Court in NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) where the Court stated the following principles:[45]
(f)The “function of the Tribunal, as of the delegate, is to respond to the case that the applicant advances”; and neither “the delegate nor the Tribunal is obliged to consider claims that have not been made”.[46]
(g)The Tribunal must “deal with the case raised by the material and evidence before it”,[47] and the “question, ultimately, is whether the case put by the [applicant] before the tribunal has sufficiently raised the relevant issue that the tribunal should have dealt with it”.[48]
(h)That does not mean, however, the Tribunal “is only required to deal with claims expressly articulated by the applicant”.[49] On the other hand, the Tribunal “is not required to consider a case that is not expressly made or does not arise clearly on the materials before it”.[50]
[45] NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2004] FCAFC 263 (Black CJ, French and Selway JJ)
[46] NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2004] FCAFC 263, at [60]. The two quoted passages are respectively from the reasons for judgment of Kirby J in Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26 quoted by Selway J in SGBB v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 199 ALR 364, at [17] and the reasons for judgment of von Doussa J in SCAL v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 548 also quoted by Selway J in SGBB, at [16]
[47] NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2004] FCAFC 263, at [60] quoting Selway J in SGBB, at [17]
[48] NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2004] FCAFC 263, at [60] quoting Selway J in SGBB, at [18]
[49] NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2004] FCAFC 263, at [60]
[50] NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2004] FCAFC 263, at [61]
The second authority is NAVK v Minister for Immigration and Multicultural and Indigenous Affairs where Allsop J (as his Honour then was) explained when it could be said a claim not expressly made may nevertheless be considered to have been raised:[51]
From NABE I take it that the Tribunal is not required to consider a claim that is not expressly made or does not arise clearly on the materials before it: NABE at [61]. As the Full Court said at [63] much depends on the circumstances. Whatever adverb or adverbial phrase is used to describe the apparentness of the unarticulated claim, it must, it seems to me, either in fact be appreciated by the Tribunal or, if it is not, arise sufficiently from the material as to require a reasonably competent Tribunal in the circumstances to appreciate its existence. A practical and common sense approach to everyday decision-making requires the unarticulated claim to arise tolerably clearly from the material itself, since the statutory task of the Tribunal is to assess the claims by reference to all the material, not to undertake an independent analytical exercise of the material for the discovery of potential claims which might be made, but which have not been, and then subjecting them to further analysis to assess their legitimacy.
Asserted claim based on interview by CID in 2009 regarding a trip to the United Kingdom and links to the LTTE
[51] NAVK v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1695, at [15]
The applicant submits this claim arises from the following passage from the RRT’s reasons for decision:[52]
The following matters are not in dispute, and I accept and find that:
. . .
•[the applicant’s] family have been involved in a variety of incidents as a result of their Tamil ethnicity. These include . . . interrogation by the CID in 2009 about a trip to England and whether he had links to the LTTE . . .
[52] CB200, [14]
In his written submissions the applicant submits the Tribunal overlooked critical information, namely, his being interrogated in relation to his “failed trip to England because if [he] returned, [the applicant] would be considered as a person committing a crime by leaving Sri Lanka illegally second time and not one time”.[53]
[53] The Applicant’s Submissions, page 3
That the applicant may have given evidence before the RRT that he had been interrogated by the CID about a trip to the UK does not mean the applicant gave the same evidence before the Tribunal. It is apparent from the Tribunal’s reasons that the applicant did not give any such evidence. As the Minister has submitted, the Tribunal recorded in its reasons for decision that, when the applicant was asked if he had ever been taken by the SLA, the SLP, or the CID, or any other element of the Sri Lankan authorities for questioning regarding any LTTE links, the applicant said he had not.[54] The Tribunal also recorded the following:[55]
As put to the applicant during his 2016 Appearance, the fact that he was never taken for questioning or interrogation by any element of the Sri Lankan authorities at any point, including during the most intense periods of the war, despite living in Sri Lanka during that time, does not support his claim that he has ever had a personal profile linked to the LTTE or opposed to the SLG. The Tribunal also explained to the applicant that this also does not support his claim to have had an adverse profile amongst the Sri Lankan authorities for any reason while he was in Sri Lanka. He responded only that he was pursued all the time in his shops. . . .
[54] CB292, [33]
[55] CB292, [34]
I am not satisfied there was before the Tribunal a claim, or that the applicant intended to rely on evidence he had given before the RRT, to the effect that the CID had interrogated him in 2009 about a trip to the UK and whether he had links to the LTTE.
Claim based on general harassment and verbal assault from Sinhalese
The only claims the applicant made that involved harassment and verbal assaults from Sinhalese are the claims relating to his treatment by SLA officers and Sinhalese who attended his or his brother’s shops. The applicant understood and considered those claims.[56] I therefore do not accept the applicant made any claim that he faced harassment and verbal assaults from Sinhalese other than to the extent the applicant claimed these occurred in connection with the shops in which he worked.
[56] CB293-294, [39]-[43]
Claim based on fear of harm from human traffickers
The applicant submits he made this claim in the Entry Interview. The Entry Interview records the applicant had paid 3 laks to an agent who had arranged for the applicant’s travel to Australia, and there remained 5 laks outstanding; that “they” were still demanding repayment of this amount; they will “make troubles with us”, and “problems for us” if the applicant does not pay the amount, such trouble consisting of “scolding” the applicant and demanding payment of money.[57] The applicant submits this reasonably raised the claim that he feared harm from the persons who had arranged the applicant’s travel to Australia.
[57] CB18
I do not accept this submission. A claim of fearing difficulties and problems in the form of scolding and the making of demands for the payment of money could not reasonably have been regarded as a claim that this would consist of “significant harm” within the meaning of s 36(2A) of the Act.
In any event, the applicant did not when he gave evidence before the Tribunal make any claim based on a fear of harm from the persons who had arranged his travel to Australia. The applicant told the Tribunal that he feared he would be the subject of intimidation and extortion because he had been sending money from Australia to his family; and that it was generally known in the community where his wife was living that the applicant was in Australia. The applicant also said, however, that, despite this, his wife has not had any problems or any adverse approaches from anyone seeking money or otherwise.[58] The Tribunal was not satisfied the applicant was harmed or extorted in any way by anyone, and was not satisfied the applicant faces a real chance of intimidation or extortion in the reasonably foreseeable future if he were to return to Sri Lanka “in connection with being a returnee from Australia or for any other reason”.[59] Thus, even if the applicant did make a claim that he feared harm from the people who arranged his travel to Australia because he owed them money, the finding the Tribunal made in relation to his claim based on intimidation and extortion that the applicant’s wife did not have any problems or any adverse approaches from anyone seeking money or otherwise would cover such claim.
[58] CB306, [100]
[59] CB307, [101]
Claim based on scars
In his written submissions the applicant submits that his representative had clearly noted the applicant would face harm due to his scars. The applicant, however, does not identify in the material before me when and in what context the applicant’s representative said anything about any scar the applicant might have. It is the case that in submissions the applicant’s representative provided to the Department, the following is stated:[60]
The fact that a client originates from a former LTTE controlled area, has visible scaring, evidence of past persecution and or previous links with the LTTE would exacerbate the risk of such a client being targeted by the Sri Lankan authorities if returned as the situation continues to remain fluid in Sri Lanka.
[60] CB114
As the Minister submits, however, this submission, together with the other submissions, were prepared in relation to 23 applicants. There is no evidence the applicant himself claimed he has scars, or has made any claim about how he came to have those scars.
Claim based on Sri Lankan Tamil Diaspora in Australia facing harm
The applicant relies on the following passage from the submissions made by the applicant’s representative provided to the Department:[61]
[61] CB150
Activities of the Tamil Diaspora
A UN report recently found credible allegations of war crimes and crimes against humanity committed by the GOSL towards the end of the civil war in Sri Lanka. The same report stated these crimes should be investigated.
The Sri Lankan Tamil Diaspora in Australia and other western countries continue to pose a threat to those who were involved in the human rights abuses where over 40,000 Tamils were slaughtered by the Sri Lankan security forces towards the end of the civil war. The Tamil Diaspora would continue with their efforts to bring those including the head of the Sri Lankan state to justice, as was done recently by a Sri Lankan Tamil man from Melbourne whose court case was quashed by Federal Attorney-General Robert McClelland on the basis that Foreign States Immunity Act extended immunities granted to diplomatic missions to heads of states.
It is [more] likely than not that such Acts would continue by the Tamil Diaspora which would instigate hatred and revenge towards Tamils residing in the country by the Majority Sinhalese while those Tamils returning from a Western country such as Australia after having their asylum claims refused face a much higher risk of being seriously harmed and killed.
The applicant did not claim that, while in Australia or elsewhere, he was involved in activities directed to bringing to justice to the Sri Lankan authorities who had engaged in human rights abuses. The applicant claimed he feared harm because he fled Sri Lanka illegally and had claimed asylum in Australia;[62] and that is the claim the Tribunal considered. This passage from the applicant’s representative’s submissions on which the applicant relies, therefore, was not relevant to the claims the applicant made; and therefore is not a basis on which it could be concluded the applicant made a claim based on his being a member of the Sri Lankan diaspora who were intent on bringing Sri Lankan authorities to justice for human rights abuses.
[62] CB79, [25]
Claim based on applicant’s cousin’s political activities
The applicant relies on his having answered “yes” to a question asked at the Entry Interview if the applicant or any member of his family have been associated with any political group. The applicant said that “one of my cousins stood for an election, but he was defeated, and then he just dropped it”. This had occurred “recently”, and it related to the applicant’s cousin’s being elected to the village council.[63] The applicant, however, did not at any stage claim that because of his cousin’s seeking election the applicant feared any harm; and the applicant’s having stated that his cousin had unsuccessfully stood for election to the village council, and, on not succeeding, the applicant’s cousin “dropped it”, was incapable of reasonably raising a claim of fear of harm.
[63] CB15
I am therefore not satisfied there was before the Tribunal a claim of fear of harm based on the applicant’s cousin having unsuccessfully applied to be elected to the village council.
Conclusion
For these reasons, ground 3 also fails.
DISPOSITION
I propose to order that the application be dismissed.
The Minister submitted that if he succeeded the Court should order that the applicant pay the Minister’s costs set in the mount of $7,467. The applicant submitted that he would find it difficult to pay any costs I might order he pay because he is unemployed. I am satisfied that costs should follow the event, and that $7,467 is a fair indemnity of the costs the Minister incurred in successfully resisting this application. I will therefore also order that the applicant pay the Minister’s costs set in the amount of $7,467.
I certify that the preceding forty-eight (48) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Manousaridis. Associate:
Dated: 18 March 2022
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